[Federal Register Volume 59, Number 205 (Tuesday, October 25, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-26355]


[[Page Unknown]]

[Federal Register: October 25, 1994]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52

[SD4-1-5671a; FRL-5077-6]

 

Clean Air Act Approval and Promulgation of Title V, Section 507, 
Small Business Stationary Source Technical and Environmental Compliance 
Assistance Program for the State of South Dakota

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is approving the State Implementation Plan (SIP) 
revision submitted by the State of South Dakota for the purpose of 
establishing a Small Business Stationary Source Technical and 
Environmental Compliance Assistance Program (PROGRAM). The 
implementation plan was submitted by the State to satisfy the Federal 
mandate, found in section 507 of the Clean Air Act (CAA), to ensure 
that small businesses have access to the technical assistance and 
regulatory information necessary to comply with the CAA. The rationale 
for the approval is set forth in this notice; additional information is 
available at the address indicated below.
DATES: This final rule will become effective on December 27, 1994 
unless adverse or critical comments are received by November 25, 1994. 
If the effective date is delayed, timely notice will be published in 
the Federal Register.

ADDRESSES: Comments should be addressed to Laura Farris, 8ART-AP, at 
the EPA Regional Office listed.
    Copies of the State's submittal and other supporting information 
used in developing this final rule are available for public inspection 
during normal business hours at the following location: U.S. 
Environmental Protection Agency, Region 8, 999 18th Street, suite 500, 
Denver, Colorado 80202.

FOR FURTHER INFORMATION CONTACT: Laura Farris, 8ART-AP,Environmental 
Protection Agency, Region VIII, 999 18th Street, suite 500, Denver, 
Colorado 80202-2405, (303) 294-7539.

SUPPLEMENTARY INFORMATION:

I. Background

    Implementation of the provisions of the Clean Air Act (CAA), as 
amended in 1990, will require regulation of many small businesses so 
that areas may attain and maintain the National ambient air quality 
standards (NAAQS) and reduce the emission of air toxics. Small 
businesses frequently lack the technical expertise and financial 
resources necessary to evaluate such regulations and to determine the 
appropriate mechanisms for compliance. In anticipation of the impact of 
these requirements on small businesses, the CAA requires that states 
adopt a Small Business Stationary Source Technical and Environmental 
Compliance Assistance Program (PROGRAM), and submit this PROGRAM as a 
revision to the federally approved SIP. In addition, the CAA directs 
the Environmental Protection Agency (EPA) to oversee these small 
business assistance programs and report to Congress on their 
implementation. The requirements for establishing a PROGRAM are set out 
in section 507 of title V of the CAA. In February 1992, EPA issued 
Guidelines for the Implementation of Section 507 of the 1990 Clean Air 
Act Amendments, in order to delineate the Federal and state roles in 
meeting the new statutory provisions and as a tool to provide further 
guidance to the states on submitting acceptable SIP revisions.
    The State of South Dakota has submitted a SIP revision to EPA in 
order to satisfy the requirements of section 507. In order to gain full 
approval, the State submittal must provide for each of the following 
PROGRAM elements: (1) The establishment of a Small Business Assistance 
Program (SBAP) to provide technical and compliance assistance to small 
businesses; (2) the establishment of a State Small Business Ombudsman 
to represent the interests of small businesses in the regulatory 
process; and (3) the creation of a Compliance Advisory Panel (CAP) to 
determine and report on the overall effectiveness of the SBAP.
    The EPA is publishing this action without prior proposal because 
the Agency views this as a noncontroversial action and anticipates no 
adverse comments. However, in a separate document in this Federal 
Register publication, the EPA is proposing approval of the South Dakota 
PROGRAM should adverse or critical comments be filed. Under the 
procedures established in the May 10, 1994 Federal Register, this 
action will be effective on December 27, 1994, unless by November 25, 
1994, adverse or critical comments are received.
    If the EPA receives such comments, this action will be withdrawn 
before the effective date by publishing a subsequent document that will 
withdraw the final action. All public comments received will then be 
addressed in a subsequent final rule based on this action serving as a 
proposed rule. The EPA will not institute a second comment period. Any 
parties interested in commenting on this action should do so at this 
time. If no such comments are received, the public is advised that this 
action will be effective on December 27, 1994.

II. Analysis

    The State of South Dakota has met all of the requirements of 
section 507 by submitting a SIP revision that implements all required 
PROGRAM elements. The South Dakota Codified Laws (SDCL) was amended 
effective July 1, 1992 to include provisions (34A-1-57 through 34A-1-
60, inclusive) which provide the authority to establish and fund the 
PROGRAM. The authority to establish and fund the Compliance Advisory 
Panel is found in SDCL 1-32-4.1 through 1-32-4.4, inclusive. The South 
Dakota Department of Environment and Natural Resources held a public 
hearing on November 6, 1992 to consider amending the South Dakota SIP 
to include a plan which commits to the development and implementation 
of the South Dakota PROGRAM. On November 10, 1992, the Governor of 
South Dakota's designee, Robert E. Roberts, Secretary of the Department 
of Natural Resources, submitted the South Dakota PROGRAM to the EPA. 
Additional information was sent by request on January 20 and March 23, 
1993. The PROGRAM was initially reviewed for administrative and 
technical completeness and was deemed complete on April 5, 1993. The 
submittal was then reviewed for approveability by EPA Region VIII and 
EPA headquarters. One of the EPA headquarters reviewers, the Office of 
the Small Business and Asbestos Ombudsman, did not concur on the South 
Dakota PROGRAM for the following reasons: (1) The State failed to 
correct deficiencies noted by EPA in their review of the proposed South 
Dakota PROGRAM; (2) Further clarification and assurances are necessary 
to insure that the State will implement all the statutory requirements 
under section 507. The State subsequently made the necessary changes to 
their PROGRAM, went back through public hearing on January 12, 1994, 
and resubmitted the PROGRAM on April 11, 1994. The South Dakota PROGRAM 
then received a concurrence from all reviewers.

1. Small Business Assistance Program

    Section 507(a) sets forth six requirements1 that the State 
must meet to have an approvable SBAP. The first requirement is to 
establish adequate mechanisms for developing, collecting and 
coordinating information concerning compliance methods and technologies 
for small business stationary sources, and programs to encourage lawful 
cooperation among such sources and other persons to further compliance 
with the Act. The second requirement is to establish adequate 
mechanisms for assisting small business stationary sources with 
pollution prevention and accidental release detection and prevention, 
including providing information concerning alternative technologies, 
process changes, products and methods of operation that help reduce air 
pollution. The State has met these requirements by committing in its 
SIP to ``Develop, collect, and coordinate information concerning 
compliance methods and technologies for small businesses ...'' and to 
``Assist small businesses with pollution prevention and accidental 
release detection and prevention.'' The mechanisms the State has 
committed to use to accomplish these commitments include: ``... 
workshops, electronic bulletin boards, interaction with other states, 
... public service announcements, mailings, workshops in the field and 
through the Rural Development Telecommunications Network (RDTN), one-
on-one with the small businesses, and any other methods that are 
determined during the development and implementation of the Program.''
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    \1\A seventh requirement of section 507(a), establishment of an 
Ombudsman office, is discussed in the next section.
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    The third requirement is to develop a compliance and technical 
assistance program for small business stationary sources which assists 
small businesses in determining applicable requirements and in 
receiving permits under the Act in a timely and efficient manner. The 
State has met this requirement by committing in its SIP to ``Provide 
compliance assistance to small businesses to help them determine 
applicable requirements and in receiving permits in a timely and 
efficient manner.''
    The fourth and fifth requirements are to develop adequate 
mechanisms to assure that small business stationary sources receive 
notice of their rights and obligations under the Act, including 
mechanisms for referring such sources to qualified auditors or, at the 
option of the State, for providing audits of the operations of such 
sources to determine compliance with the Act. This must be done in such 
manner and form as to assure reasonably adequate time for such sources 
to evaluate compliance methods and any relevant or applicable proposed 
or final regulation or standards issued under the Act. The State has 
met these requirements by committing in its SIP to ``Notify small 
businesses of their rights under the Federal Clean Air Act and assure 
reasonably adequate time for such sources to evaluate compliance 
methods and any relevant or applicable proposed or final regulation or 
standard issued under the Federal Clean Air Act;'' and ``Inform small 
businesses of their obligations under the Federal Clean Air Act. If the 
state does not provide audits of the operations of such sources to 
determine compliance with state and Federal air pollution regulations, 
then the state will refer such sources to qualified auditors.'' The 
mechanisms the State has committed to use to accomplish these 
commitments include: ``... workshops, electronic bulletin boards, 
interaction with other states, ... public service announcements, 
mailings, workshops in the field and through the Rural Development 
Telecommunications Network (RDTN), one-on-one with the small 
businesses, and any other methods that are determined during the 
development and implementation of the Program.''
    The sixth requirement is to develop procedures for consideration of 
requests from a small business stationary source for modification of: 
(A) Any work practice or technological method of compliance; or (B) the 
schedule of milestones for implementing such work practice or method of 
compliance preceding any applicable compliance date, based on the 
technological and financial capability of any such small business 
stationary source. The State has met this requirement by committing in 
its SIP to ``Provide procedures for considering requests from small 
businesses for modifications of any work practice or technological 
methods of compliance or the schedule of milestones for implementing 
these modifications. No such modification may be granted unless it is 
in compliance with the applicable state and Federal requirements.''

2. Ombudsman

    Section 507(a)(3) requires the designation of a State office to 
serve as the Ombudsman for small business stationary sources. The State 
has met this requirement by stating in its SIP that the Office of the 
Small Business Ombudsman will be located in the Department of 
Environment and Natural Resources.

3. Compliance Advisory Panel

    Section 507(e) requires the State to establish a Compliance 
Advisory Panel (CAP) that must include two members selected by the 
Governor who are not owners or representatives of owners of small 
businesses; four members selected by the State legislature who are 
owners, or represent owners, of small businesses; and one member 
selected by the head of the agency in charge of the Air Pollution 
Permit Program. The State has met this requirement by committing in its 
SIP to appoint the members of the CAP as stated above.
    In addition to establishing the minimum membership of the CAP the 
CAA delineates four responsibilities of the Panel: (1) To render 
advisory opinions concerning the effectiveness of the SBAP, 
difficulties encountered and the degree and severity of enforcement 
actions; (2) to periodically report to EPA concerning the SBAP's 
adherence to the principles of the Paperwork Reduction Act, the Equal 
Access to Justice Act, and the Regulatory Flexibility Act2; (3) to 
review and assure that information for small business stationary 
sources is easily understandable; and (4) to develop and disseminate 
the reports and advisory opinions made through the SBAP. The State has 
met this requirements by listing the duties of the CAP in its SIP, 
which are consistent with those stated above.
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    \2\Section 507(e)(1)(B) requires the CAP to report on the 
compliance of the SBAP with these three Federal statutes. However, 
since State agencies are not required to comply with them, EPA 
believes that the State PROGRAM must merely require the CAP to 
report on whether the SBAP is adhering to the general principles of 
these Federal statutes.
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4. Eligibility

    Section 507(c)(1) of the CAA defines the term ``small business 
stationary source'' as a stationary source that:

    (A) Is owned or operated by a person who employs 100 or fewer 
individuals;
    (B) Is a small business concern as defined in the Small Business 
Act;
    (C) Is not a major stationary source;
    (D) Does not emit 50 tons per year (tpy) or more of any regulated 
pollutant; and
    (E) Emits less than 75 tpy of all regulated pollutants.

    The State of South Dakota has established a mechanism for 
ascertaining the eligibility of a source to receive assistance under 
the PROGRAM, including an evaluation of a source's eligibility using 
the criteria in section 507(c)(1) of the CAA. This mechanism is 
contained in the State's SIP.
    The State of South Dakota has provided for public notice and 
comment on grants of eligibility to sources that do not meet the 
provisions of sections 507(c)(1)(C), (D), and (E) of the CAA but do not 
emit more than 100 tpy of all regulated pollutants. This provision is 
contained in the State's SIP.
    The State of South Dakota has provided for exclusion from the small 
business stationary source definition, after consultation with the EPA 
and the Small Business Administration Administrator and after providing 
notice and opportunity for public comment, of any category or 
subcategory of sources that the State determines to have sufficient 
technical and financial capabilities to meet the requirements of the 
CAA. This provision in contained in the State's SIP.

III. This Action

    In today's action, EPA is approving the SIP revision submitted by 
the State of South Dakota.
    The State of South Dakota has submitted a SIP revision implementing 
each of the required PROGRAM elements required by section 507 of the 
CAA. The members of the South Dakota CAP have been appointed, and the 
Ombudsman for the South Dakota PROGRAM has been hired. EPA is therefore 
approving this submittal.
    This action has been classified as a Table 2 action by the Regional 
Administrator under the procedures published in the Federal Register on 
January 19, 1989 (54 FR 2214-2225), as revised by an October 4, 1993 
memorandum from Michael H. Shapiro, Acting Assistant Administrator for 
Air and Radiation. A future document will inform the general public of 
these tables. On January 6, 1989, the Office of Management and Budget 
(OMB) waived Table 2 and 3 SIP revisions from the requirements of 
section 3 of Executive Order 12291 for 2 years. The EPA has submitted a 
request for a permanent waiver for Table 2 and Table 3 SIP revisions. 
The OMB has agreed to continue the temporary waiver until such time as 
it rules on EPA's request. This request continues in effect under 
Executive Order 12866 which superseded Executive Order 12291 on 
September 30, 1993.
    Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA 
must prepare a regulatory flexibility analysis assessing the impact of 
any proposed or final rule on small entities. 5 U.S.C. 603 and 604. 
Alternatively, EPA may certify that the rule will not have a 
significant impact on a substantial number of small entities. Small 
entities include small businesses, small not-for-profit enterprises, 
and government entities with jurisdiction over populations of less than 
50,000.
    By today's action, EPA is approving a State program created for the 
purpose of assisting small businesses in complying with existing 
statutory and regulatory requirements. The program being approved today 
does not impose any new regulatory burden on small businesses; it is a 
program under which small businesses may elect to take advantage of 
assistance provided by the State. Therefore, because the EPA's approval 
of this program does not impose any new regulatory requirements on 
small businesses, I certify that it does not have a significant 
economic impact on any small entities affected.

List of Subjects in 40 CFR Part 52

    Air pollution control, Incorporation by reference, Small business 
assistance program.

    Dated: September 14, 1994.
Jack W. McGraw,
Acting Regional Administrator.

    Part 52, chapter I, title 40 of the Code of Federal Regulations is 
amended as follows:

PART 52--[AMENDED]

    1. The authority citation for part 52 continues to read asfollows:

    Authority: 42 U.S.C. 7401-7671q.

Subpart QQ--South Dakota

    2. Section 52.2170 is amended by adding paragraph (c)(15) to read 
as follows:


Sec. 52.2170  Identification of plan.

* * * * *
    (c) * * *
    (15) On November 10, 1992, the Governor of South Dakota's designee 
submitted a plan for the establishment and implementation of a Small 
Business Assistance Program to be incorporated into the South Dakota 
State Implementation Plan as required by section 507 of the Clean Air 
Act. An amendment to the plan was submitted by the Governor's designee 
on April 1, 1994.
    (i) Incorporation by reference.
    (A) November 10, 1992 letter from the Governor of South Dakota's 
designee submitting a Small Business Assistance Program plan to EPA.
    (B) April 1, 1994 letter from the Governor of South Dakota's 
designee submitting an amendment to the South Dakota Small Business 
Assistance Program plan to EPA.
    (C) The State of South Dakota amended plan for the establishment 
and implementation of a Small Business Assistance Program, adopted 
January 12, 1994 by the South Dakota Department of Environment and 
Natural Resources.
    (D) South Dakota Codified Laws 34A-1-57, effective July 1, 1992 and 
34A-1-58 through 60, effective July 1, 1993, which gives the State of 
South Dakota the authority to establish and fund the South Dakota Small 
Business Assistance Program.
[FR Doc. 94-26355 Filed 10-24-94; 8:45 am]
BILLING CODE 6560-50-F